Free movement of capital

The free movement of capital is not only the most recent of all Treaty freedoms, but — because of its unique third-country dimension — also the broadest. The liberalisation of capital flows progressed gradually. Since the Maastricht Treaty, all restrictions on capital movements and payments have been removed, both between Member States and with third countries. The principle has direct effect, i.e. it requires no further legislation at either EU or Member State level.

Legal basis

Articles 63 to 66 of the Treaty on the Functioning of the European Union (TFEU).

Objectives

All restrictions on capital movements between Member States as well as between Member States and third countries should be removed, with exceptions in certain circumstances. The free movement of capital underpins the single market and complements the other three freedoms. It also contributes to economic growth by enabling capital to be invested efficiently and promotes the use of the euro as an international currency, thus contributing to the EU’s role as a global player. It was also indispensable for the development of Economic and Monetary Union (EMU) and the introduction of the euro.

Achievements

a.First endeavours (before the single market)

The first Community measures were limited in scope. The Treaty of Rome required the restrictions to be removed only to the extent necessary for the functioning of the common market. The ‘First Capital Directive’[1] from 1960, amended in 1962, ended restrictions on certain types of commercial and private capital movements, such as real-estate purchases, short- or medium-term lending for commercial transactions, and purchases of securities traded on the stock exchange. Some Member States went further by introducing unilateral national measures, thereby abolishing virtually all restrictions on capital movements (e.g. Germany, the United Kingdom and the Benelux countries). Another directive[2] on international capital flows followed in 1972.

b.Further progress and general liberalisation in view of the single market

It was not until the single market was launched that the liberalisation, which started in 1960, resumed. Amendments were made to the ‘First Capital Directive’ in 1985 and 1986, bringing further unconditional liberalisation in areas such as long-term lending for commercial transactions and purchases of securities not dealt on the stock exchange.

Against the backdrop of completing the single market (by 1993), setting up EMU and the envisaged introduction of the euro, capital movements were fully liberalised, in a first step, by a Council Directive[3] in 1988, which scrapped all remaining restrictions on capital movements between Member States’ residents as of 1 July 1990. It also allowed for some countries to maintain temporary restrictions, but only for a specific period: Ireland, Portugal and Spain until 31 December 1992, and Greece until 30 June 1994. Protocol 32 to the Treaty on European Union (TEU) continues to allow Denmark to maintain existing legislation which restricts the acquisition of second homes by non-residents.

c.The definitive system

1.Principle

In a second step, the Maastricht Treaty, which entered into force in 1994, introduced the free movement of capital as a Treaty freedom. Today, Article 63 TFEU prohibits all restrictions on the movement of capital and payments between Member States, as well as between Member States and third countries. The Court of Justice of the European Union is charged with the task of interpreting the provisions related to the free movement of capital, and extensive case law exists in this area. In cases where Member States restrict the freedom of capital movement in an unjustified way, the usual infringement procedure set out in Article 258-260 TFEU applies.

2.Exceptions and justified restrictions

Exceptions are largely confined to capital movements related to third countries (Article 64 TFEU). In addition to the option for Member States of maintaining restrictions on direct investment and other transactions which existed on a given date, the Council may also, after consulting the European Parliament, unanimously adopt measures which constitute a step backwards in the liberalisation of capital movements with third countries. In addition, the Council and the European Parliament may adopt legislative measures involving direct investment, establishment, provision of financial services or the admission of securities to capital markets. Article 66 TFEU covers emergency measures vis-à-vis third countries, limited to a period of six months.

The only justified restrictions on capital movements in general, including movements within the EU, are laid down in Article 65 TFEU. These include: (i) measures to prevent infringements of national law (namely for taxation and prudential supervision of financial services); (ii) procedures for the declaration of capital movements for administrative or statistical purposes; and (iii) measures justified on the grounds of public policy or public security. The latter was invoked during the euro area crisis, when Cyprus (2013) and Greece (2015) were forced to introduce capital controls in order to prevent an uncontrollable outflow of capital. While Cyprus removed all of the remaining restrictions in 2015, capital controls, albeit loosened, remain in place in Greece.

Article 144 TFEU allows, within the framework of the balance of payments assistance programmes, for protective balance of payments measures where difficulties jeopardise the functioning of the internal market or where a sudden crisis occurs. This safeguard clause is only available to Member States outside of the euro area.

Finally, Articles 75 and 215 TFEU provide for the possibility of financial sanctions either to prevent and combat terrorism or based on decisions adopted within the framework of the common foreign and security policy.

3.Payments

Article 63(2) TFEU stipulates that ‘all restrictions on payments between Member States and between Member States and third countries shall be prohibited’.

In 2001, a regulation harmonising the costs of domestic and cross-border payments within the euro area was adopted. It was repealed and replaced in 2009[4].

The Payment Services Directive (PSD)[5] provided the legal foundation for establishing a set of rules applicable to all payment services in the EU to make cross-border payments as easy, efficient and secure as ‘national’ payments, and to foster efficiency and cost-reduction through more competition by opening up payment markets to new entrants. The PSD provided the necessary framework for an initiative of the European banking and payments industry, called the ‘Single Euro Payments Area’ (SEPA). SEPA instruments were available, but not much in use by the end of 2010. Consequently, in 2012, a regulation[6] was adopted, setting EU-wide end-dates for the migration of the old national credit transfers and direct debits to SEPA instruments. In 2015, the co-legislators adopted the revised Payment Services Directive (PSD 2)[7], which repealed the existing directive. It enhances transparency and consumer protection and adapts the rules to cater for innovative payment services, including internet and mobile payments. The directive entered into force on 12 January 2016 and needs to be transposed by 13 January 2018.

d.Further developments

Despite the progress achieved in liberalising capital flows in the EU, capital markets have remained, to a large extent, fragmented. Building on the Investment Plan for Europe, the Commission launched, in September 2015, its flagship initiative: ‘Capital Markets Union’. This includes a number of measures aimed at creating a truly integrated single market for capital by 2019. A mid-term review of the Capital Markets Action Plan was published in June 2017. In addition, the Commission and the Member States are working on eliminating obstacles to cross-border investment which fall within national competences. The Expert Group on barriers to free movement of capital was set up to examine this issue. In March 2017, by way of follow-up to the work of the expert group, the Commission published a report outlining the situation in the Member States.

The Commission is also working towards discontinuing the existing intra-EU bilateral investment treaties (BITs), many of which existed before the most recent rounds of EU enlargement. These agreements between Member States are considered by the Commission to be an impediment to the single market as they both clash and overlap with the EU legislative framework. For example, the arbitration mechanisms which are integrated into the BITs exclude both the national courts and the Court of Justice of the European Union, thus preventing the application of EU law. BITs may also result in more favourable treatment being given to investors from certain Member States which concluded intra-EU BITs. The Commission has launched infringement proceedings against a number of Member States.

The Commission also publishes yearly reports and studies on capital flows within the EU and in the global context.

Role of the European Parliament

Parliament has strongly supported efforts to encourage the liberalisation of capital movements. However, it has always taken the view that such liberalisation should be more advanced within the EU than with the rest of the world, to ensure that European savings fuel European investment as a priority. It has also pointed out that capital liberalisation should be backed up by full liberalisation of financial services and the harmonisation of tax law in order to create a unified European financial market. It was thanks to political pressure from Parliament that the Commission was able to launch legislation on the harmonisation of domestic and cross-border payments.

Parliament has supported the launch of the Capital Markets Union. It adopted a resolution which stressed the need for a level playing field among participants in order to improve the allocation of capital in the EU. The resolution called for existing barriers to cross-border financing to be removed, in particular for SMEs, and for a stronger role for the European Securities and Markets Authority (ESMA) in improving supervisory convergence.

[1]EEC Council: First Directive for the implementation of Article 67 of the Treaty, OJ 43, 12.7.1960, p. 921.

[2]Council Directive 72/156/EEC of 21 March 1972 on regulating international capital flows and neutralizing their undesirable effects on domestic liquidity, OJ L 91, 18.4.1972, p. 13.

[3]Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, OJ L 178, 8.7.1988, p.5.

[4]Regulation (EC) No 924/2009 of the European Parliament and of the Council of 16 September 2009 on cross-border payments in the Community and repealing Regulation (EC) No 2560/2001, OJ L 266, 9.10.2009, p. 11.

[5]Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, OJ L 319, 5.12.2007, p. 1.

[6]Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009, OJ L 94, 30.3.2012, p. 22.

[7]Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, OJ L 337, 23.12.2015, p. 35.

Dražen Rakić

06/2017